Voters in the City of San Clemente will decide on a building height and view ordinance, thanks to a state appellate court ruling regarding signature gathering for a referendum of the ordinance.

The Fourth District Court of Appeal ruled that referendum supporters did not have to abide by a state law requiring petition circulators to be city residents, because the law is unconstitutional. A 1999 state attorney general's opinion, issued after a pivotal U.S. Supreme Court ruling, reached the same conclusion, the court noted.

The land use controversy in San Clemente concerns ocean views. In July 2006, the San Clemente City Council approved an ordinance prohibiting second-story additions in the Shorecliffs area. The ordinance came in response to complaints from homeowners who said they were losing their ocean views because of two-story houses. The ordinance limits buildings in the area to 16 feet in height, but permits reduced setbacks and increased lot coverage for affected parcels.

With the help of a signature gathering company, a group called San Clemente Residents for Responsible Government circulated a referendum of the ordinance. In August 2006, the group submitted enough signatures to force the referendum onto the ballot.

However, an anti-referendum (or pro-height limit) group called Preserve Shorecliff Homeowners sued. The group's primary contention was that referendum supporters (height limit opponents) violated Elections Code § 9209, read together with § 9022, because the paid circulators were not residents of San Clemente. The state law requires circulators of referendum petitions to be residents of the city subject to the referendum.

Orange County Superior Court Judge Geoffrey Glass determined that the referendum proponents had violated § 9209 and the related § 9238, subdivision (c). However, he ruled that disqualification of the referendum was not proper given that the city clerk had determined the signatures were genuine. In May 2007, Judge Glass ruled the referendum valid.

Preserve Shorecliff Homeowners appealed, arguing that Glass has effectively voided state law. The group argued that the constitutionality of the statutes was not at issue, so the court should simply determine whether the referendum proponents complied.

But the court said the constitutionality of the law was crucial, as "[a]ppellate courts are not in the business of directing trial courts to violate the constitution."

The key case in this area is Buckley v. American Constitutional Law Foundation, (1999) 525 U.S. 182. In Buckley, the U.S. Supreme Court ruled that the State of Colorado could not limit initiative and referendum petition circulators to registered voters. The court said there was no compelling reason to prevent residents who are not registered to vote from circulating petitions. Shortly after Buckley, the California attorney general's office issued its opinion concluding that § 9209's requirement that petition circulators be residents of the city subject to the referendum or initiative was unconstitutional. The requirement in § 9238, subdivision (c) is the same.

The Fourth District reasoned that if Colorado's law reducing the pool of potential circulators by 18% (the difference between the number of residents eligible to vote and the number of registered voters) was unconstitutional, then surely a statute limiting the pool of circulators to residents of a particular city was not permissible.

"In San Clemente, the effect of § 9238, subdivision (c) is to reduce the pool of potential circulators (from the pool of state residents eligible to vote) by more than 99%," Presiding Justice David Sills wrote for the Fourth District, Division Three, panel. This would be a severe burden on First Amendment rights, the court ruled.

Referendum opponents pointed to Browne v. Russell, (1994) 27 Cal.App.4th 1116, in which a California appellate court upheld the City of Los Angeles's residency requirement for petition circulators. But the Fourth District declined to follow Browne. "At the most basic level, Browne decides a question of federal law in a manner that cannot be reconciled with the authoritative federal decisions in the area," Sills wrote.

The San Clemente circulators actually had gone around the residency requirement by having petition signers also witness their own signatures as circulators. That may or may not have been a defect — city and county elections officials declined to take a position on the validity of that practice — but the fact remained that the petition contained the required number of valid signatures, Sills noted in refusing to invalidate the referendum.

The referendum is now set for a June 3 special election.

The Case:
Preserve Shorecliff Homeowners v. City of San Clemente, No. G038649, 08 C.D.O.S. 806, 2008 DJDAR 697. Filed January 16, 2008.
The Lawyers;
For Preserve Shorecliff Homeowners: James Sutton, (415) 732-7700.
For San Clemente Citizens for Responsible Government: Frederic Woocher, Strumwasser & Woocher, (310) 576-1233.
For the city: Jeffrey Oderman, Rutan & Tucker, (714) 641-5100.
For the Orange County registrar of voters: Wendy Phillips, county counsel's office, (714) 834-3300.